RAJKAMAL TRANSPORT Vs. RAJENDRA A PARDIWALA

JUDGEMENT

(1.) BOTH the above Writ Petitions arise from the Award passed by the Labour Court in Reference (IDA) No. 643 of 1987. Writ Petition No. 1406 of 1994 has been filed by the Company whereas Writ petition No. 731 of 1996 has been filed by the workman. Accordingly, both the Writ Petitions are disposed of together by this common judgment.

(2.) THE facts giving rise to the writ Petitions, briefly, are as follows.

(3.) RAJENDRA Pardiwala was appointed as a Peon on 1st May 1980. According to the Company, he was warned for refusing to obey orders of his superiors on several occasions in the past even prior to the issuance of the charge sheet on 27th October 1984. He was warned on 15th April 1982, and 13th October 1983 for remaining absent without leave. In 1983, according to the Company, he was also transferred within Bombay from one Office to the other. According to the Company, on 4th December 1983, he was also warned and censured for refusing to work. According to the Company, on 3rd August 1984, he was asked to go to a Tailor of the Company to get his uniform stitched which he refused and for which he was warned on 8th August, 1984. According to the Company, on 24th August 1984, he was once again warned for refusing to give his residential address in Bombay. According to the Company, on 11th September 1984, the workman got stitched the uniform according to his own pattern. On 26th September 1984, he was asked to get the uniform stitched according to the Companys requirement/pattern which was also an instruction given to him which he did not follow and in the circumstances, on 27th October 1984, he was given a chargesheet/show cause notice for not wearing uniform while on duty. He was also given a chargesheet for availing leave on false pretext from 11th October 1984 upto 22nd October 1984. According to the Company, the workman had applied for leave on the ground that he was not well, whereas the Company found that during the relevant period, he was selling crackers at Mohammedali Road. The chargesheet was also given because according to the Company on 8th October 1984, the workman had refused to clean the Managers cabin. In other words, the chargesheet refers to three separate misconducts viz. not wearing uniform while on duty, availing leave on false pretext and lastly refusing to clean the Managers cabin. On 29th October 1984, the workman replied to the above chargesheet. He denied that he was selling crackers at Mohammedali Road. According to the reply, he was staying at Mandvi; that he was suffering from dysentry; that at Mohammedali Road, he was standing outside his friends crackers shop when the representative of the Company / his colleague came to buy crackers and he only requested his friend to sell the crackers to his colleague. However, he denied that he was selling crackers at Mohammedali Road during the above period, as alleged by the Company. The workman also pointed out in his reply dated 29th October 1984 that no instructions were given to him about any particular pattern which he was required to follow while his uniform was being stitched and in the circumstances, he denied all the allegations in the said chargesheet. With regard to his refusal to clean the Managers cabin, the workman specifically contended that he was earlier working in the office of the Company in Bombay near Mohammedali Road where he was working as a Peon, but in 1983, he was shifted to another office of the Company in Bombay and in the other Office of the Company, he was only assigned the work of carrying letters as a Despatch Peon and he was required to do clerical work and in the circumstances, he pointed out to the Manager that cleaning the cabin was not within the purview of his duties. By the said reply, he further pointed out that even as a Peon, he was not required to work as a sweeper. He further pointed out by the above reply that the Manager had not asked him to clean the cabin, but he had asked the workman to sweep the floor after removing the carpet on the ground which was not the work of a Peon, but of a sweeper. In the circumstances, the workman denied the allegations made in the show cause notice. The said reply and the explanation was not found satisfactory and in the circumstances, the Company decided to proceed with a Domestic Enquiry. Ultimately, on 4th March 1985, he was dismissed from service. Since an Industrial dispute was pending before the Competent Tribunal, the Company sought approval which was granted on 30th September 1986. Thereafter, the workman sought a Reference under section 10 of the Industrial Disputes Act, 1947. The reference was granted by the Government and the matter stood transferred to the Industrial Tribunal in November 1992. According to the claim made by the workman in the said reference, he was victimized. He has also pleaded that the Domestic Enquiry was not fair and proper. He also pleaded in the said reference that the punishment was disproportionate. By way of Part-I Award dated 1st December 1993, the Industrial Tribunal found that the enquiry was fair and proper. However, the parties filed a Purshis before the Industrial Tribunal and they did not lead any oral evidence thereafter for the purposes of proving the propriety of the Order of punishment or victimization or mala fides etc. Ultimately, on 7th January 1994, the Labour Court passed an Award being Part-II Award. The Labour Court found that the workman as guilty of misconduct. However, the Labour Court found that the punishment by way of dismissal was not warranted and in the circumstances, the Labour Court directed reinstatement with 50% back wages and continuity of service. Being aggrieved by the Part-II Award dated 7th January 1994, the above two writ petitions have been filed. On 14th February, 1995 this Court directed the employer to pay wages under section 17-B of the Industrial Disputes Act and it is not in dispute that from 14th February 1995, the Order is implemented and the workman has been receiving wages under section 17-B of the said Act, 1947.